Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1103545, Nancy Ashley, Judge.
Cotsirilos & Campisano and George J. Cotsirilos, Jr., for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Victor Leroy Deanda of numerous offenses arising from his possession and use of controlled substances and drug paraphernalia. He was sentenced to a term of 25 years to life in prison, to run consecutively to the term imposed in Stanislaus County Superior Court case No. 1082798 (No. 1082798). He contends (1) trial counsel was ineffective for failing to file a motion to suppress the evidence against him; (2) the trial court abused its discretion in refusing to strike his prior convictions; and (3) his sentence is cruel and unusual punishment. We will affirm the judgment.
Deanda filed an appeal in this action under our case No. F054855.
FACTUAL AND PROCEDURAL SUMMARY
On October 6, 2004, Probation Officers Victor Curtis and Samuel Sharp were executing a search of probationer Linda Macedo’s residence, with the assistance of Sergeant Keith Rakoncza of the Stanislaus County Sheriff’s Department and Officer Greg Yatsue of the Ceres Police Department. Rakoncza and Curtis were heading toward the rear of the house; Yatsue and Sharp were going to the front door.
Rakoncza and Curtis walked along an open field on the side of Macedo’s house as they headed toward the back door. They noticed an open window on the side of Macedo’s house with the curtain pushed open. From a distance of about 12 feet, they looked through the open window and saw Deanda lying on the bed talking to Roy Muniz; Muniz was sitting on the bed.
Rakoncza went up to the window and looked inside the room. He saw Bennetta Chatman in the corner of the room. Two syringes and a spoon were on the nightstand. Rakoncza announced his presence and ordered everyone to show their hands. Deanda, Muniz, and Chatman began scampering around; Deanda sat up by the nightstand. Muniz took a newspaper, unfolded it, and held it up by the window, partially blocking the officer’s view. While Muniz was holding up the paper, he continued to look over his shoulder at Deanda. Rakoncza ordered Muniz to put down the newspaper and step out of the way; Muniz did not move.
Rakoncza grabbed the newspaper and physically moved Muniz out of the way. At that point, the movement inside the house stopped. Rakoncza ordered them to open the front door. Deanda, Chatman, and Muniz walked out of the bedroom and down the hall. Rakoncza and Curtis stayed by the open window to be sure no one returned and tampered with any of the evidence. Once Yatsue and Sharp were inside the house, Curtis went inside and into the bedroom to secure the evidence, followed by Rakoncza.
The officers found one syringe on the nightstand that contained heroin. Another syringe was on the floor near the nightstand. Also on or near the nightstand were (1) an Altoids box containing.45 grams of cocaine base, (2) a large spoon with a tar-like substance, (3) a glass smoking pipe with steel wool inside, (4) a small plastic baggie containing.12 grams of cocaine base, (5) a cloth bag containing baggies with a green, leafy substance, and (6) another baggie containing methamphetamine. By the closet were papers with small balloons wrapped inside. Inside the balloons were heroin and cocaine base. Another syringe was found in Macedo’s bedroom.
Curtis and Rakoncza observed that Deanda appeared to be under the influence of a controlled substance, with his head falling forward, eyelids very heavy and shutting, and pupils constricted and nonresponsive to light. When someone is “on the nod” as Deanda was, it usually means they have taken a controlled substance within the last hour.
Rakoncza read Deanda his Miranda rights and Deanda agreed to speak with Rakoncza. Deanda told Rakoncza that he rented the room and was the only one who had a right to be in the room. When asked about the drugs and paraphernalia in the room, Deanda claimed to have been asleep and to have no knowledge of the items. He repeated the answer three times.
Miranda v. Arizona (1966) 384 U.S. 436.
A jury convicted Deanda of possession of heroin, possession of cocaine base, possession of methamphetamine, use of a controlled substance, possession of drug paraphernalia, and possession of a hypodermic needle and syringe. In a bifurcated proceeding, the trial court found five of six alleged prior convictions true.
On February 8, 2008, the trial court applied the Three Strikes law and sentenced Deanda to a term of 25 years to life, with the term to run consecutively with the sentence imposed in case No. 1082798.
DISCUSSION
Deanda contends his trial counsel was ineffective for failing to challenge the “initial illegal warrantless window search” of his rented room. He also contends the trial court abused its discretion when it refused to strike his prior convictions. He further contends that his sentence constitutes cruel and unusual punishment.
I. Ineffective Assistance of Counsel
Deanda claims his trial counsel was ineffective for failing to challenge the search of his rented room. In order to establish ineffective assistance of counsel, the burden is on Deanda to show that his trial counsel’s performance was inadequate when measured against a reasonably competent attorney standard and that it is reasonably probable a more favorable outcome would have been achieved but for counsel’s inadequate performance. “‘“[W]here the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.”’” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 28 (Dimitrov).)
On the record before us, there is nothing to indicate that the search was inappropriate. It is undisputed that Macedo was on probation, probationers are often subject to search conditions, and officers testified they were executing a probation search. Therefore, on the record before us, we decline to conclude that counsel rendered ineffective assistance. (Dimitrov, supra, 33 Cal.App.4th at p. 28.) There are matters that are not in the record, however, such as the conditions of the probation search, the area surrounding the residence, or why defense counsel did not challenge the search, that are outside the record on appeal and subject to being developed more fully and addressed in a petition for writ of habeas corpus.
II. Sentencing Issues
Deanda was sentenced to a term of 25 years to life in prison, to run consecutively with his 25-years-to-life term imposed in case No. 1082798. He contends the trial court abused its discretion by failing to strike enough of his prior convictions to take him out of the Three Strikes law. He also argues the total term of 50 years to life constitutes cruel and unusual punishment. We disagree.
Abuse of Discretion
The trial court found five prior strike convictions to be true. The trial court also found that Deanda had served a prison term. Deanda asked the trial court to strike his prior convictions pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
Deanda’s probation report listed numerous prior offenses, including eight felony convictions. The prior offenses included assault with intent to commit rape, several burglaries, several misdemeanor convictions, and eight instances where he had violated parole. The probation report also noted that Deanda was on parole when he committed the current offenses.
Prior to ruling, the trial court reviewed and considered the pleadings filed in support of and in opposition to the motion and the probation report. After hearing argument, the trial court denied the Romero motion. In denying the motion, the trial court noted Deanda’s lengthy criminal history, covering 30 years, his numerous incarcerations, continued substance abuse, despite treatment opportunities, and that Deanda had committed the instant offense while on parole. As the trial court stated:
“Three strikes probably is written for somebody just like Mr. Deanda where society said he’s committed so many offenses, we’re not gonna wait for him to commit one more violent or serious felony.
“So he has committed such offenses in the past, and I cannot in good conscience grant the motions.”
Penal Code section 1385 permits a court to strike felony conviction allegations in cases brought under the Three Strikes law. (Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) A trial court’s decision not to strike a serious or violent felony conviction allegation under section 1385 is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The burden is on the defendant to show that the sentencing decision was irrational or arbitrary. (Id. at p. 376.) “‘“In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” (Id. at pp. 376-377.)
The trial court here did not abuse its discretion in refusing to strike Deanda’s prior convictions. The trial court’s decision was neither arbitrary nor capricious. It was based upon Deanda’s extensive criminal history, including numerous serious felony convictions, his repeated failure to remain crime free while on parole, and the likelihood that he would continue to offend. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The Three Strikes law was intended to restrict courts’ discretion in sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528.) The striking of a serious felony conviction is not a routine matter; rather, it is an extraordinary exercise of discretion. (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)
Deanda has failed to establish that the trial court’s decision was arbitrary or capricious; therefore, we conclude the trial court did not abuse its discretion.
Cruel and Unusual Sentence
Punishment under Three Strikes and other recidivist statutes is not inherently cruel and unusual. (Ewing v. California (2003) 538 U.S. 11, 25-31; People v. Cartwright, (1995) 39 Cal.App.4th 1123, 1134-1137.) The purpose of a recidivist statute is to deter repeat offenders and to segregate from the rest of society those who repeatedly commit serious criminal offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)
Deanda argues his current offenses are related to his substance abuse and that a first-time drug offender would not be punished as harshly. We agree, but Deanda is not a first-time offender. He is a recidivist who apparently has not been deterred despite numerous incarcerations.
Deanda also claims that the punishment he received is as harsh, or harsher, than the punishment meted out for violent offenses, such as murder. His analysis fails again, however, to take into account that he is subject to being punished as a repeat offender. The current convictions are merely the latest in a long history of criminal lifestyle.
Deanda further argues that in other jurisdictions his current offenses would not trigger recidivist penalties, or they would trigger a lesser sentence. As the United States Supreme Court has stated, “the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Rummel v. Estelle, supra, 445 U.S. at p. 285.)
Whenever a putatively disproportionate sentence is specified under Three Strikes, the trial court has the ability to modify the sentence if it deems it appropriate. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366-367.) As set forth ante, the trial court weighed and evaluated the various factors, determining that Deanda fell squarely within the spirit of the recidivist statutes. (Williams, supra, 17 Cal.4th at p. 161.)
California, as the punishing jurisdiction, has determined that the sentence imposed is appropriate for a recidivist offender. The trial court determined that it was not appropriate to modify the sentence in Deanda’s case. Deanda has failed to establish that his punishment as a recidivist offender is cruel and unusual. (People v. Strong (2001) 87 Cal.App.4th 328, 338.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., HILL, J.